1211 - Criminal History Background Checks

Category

Appointments

Audience List

• Administrative Chiefs
• Human Resources Chiefs
• Human Resources Liaisons
• Labor Relations Officers
• Personnel Officers

Synopsis

It is an unlawful employment practice under the California Fair Employment and Housing Act (FEHA) to seek the disclosure of an applicant’s criminal history until after the applicant has received a conditional offer of employment.

Consistent with FEHA, this policy excludes the following from the above prohibition not to seek the disclosure of an applicant’s criminal history:

• Positions for which criminal background checks are required for employment by law.
• Positions as a Farm Labor Contractor as described in Labor Code section 1685.
• Positions with a criminal justice agency whose principal functions relate to either the apprehension, prosecution, adjudication, incarceration, or correction of criminal offenders; or the collection, storage, dissemination or usage of criminal offender record information as defined in Penal Code 13101.

In implementing any criminal history background check procedure, departments shall internally vet and justify the procedure through the appropriate personnel, which shall include human resources, labor, and  legal staff.  This internal vetting process will ensure Human Resources Offices maintain compliance with this policy, the civil service merit principle, and all applicable laws, rules, regulations, or other legal requirements.

Introduction

Pursuant to Government Code section 12952, departments cannot do any of the following before a conditional offer of employment is made to the applicant:

1. include on any application for employment any question that seeks the disclosure of an applicant’s conviction history;
2. inquire into or consider the conviction history of the applicant, including any inquiry about conviction history on any employment application.

For the purpose of this policy, “conviction” has the same meaning as defined in Labor Code section 432.7 (a)(1) and (3), which shall include a plea, verdict, or finding of guilt regardless of whether a sentence is imposed by the court. Conviction does not include, and shall not be construed to include, any adjudication by a juvenile court or any other court order or action taken with respect to a person who is under the process and jurisdiction of the juvenile court law.

Statement

Information to be Excluded from Criminal History Checks

When conducting a criminal history background check after a conditional offer of employment is made, departments are prohibited from considering, distributing, or disseminating information about the following:

• Arrests that do not result in a conviction except those permitted in Labor Code section 432.7 (a)(1) and (f)
• Referral to or participation in pretrial or post-trial diversion programs
• Convictions that have been sealed, dismissed, expunged, or statutorily eradicated.

Application

Preliminary Decision to Rescind Employment Offer Based on Conviction History

If a department intends to deny an applicant a position solely or in part because of information discovered during a criminal history check, the department shall make an individualized assessment as to whether the conviction history has an adverse relationship with the duties of the job. When making an assessment the following must be considered:

• The nature and gravity of the offense or conduct
• The time that has passed since the offense or conduct and completion of the sentence
• The nature of the job held or sought

Departments are not required to provide the results of the assessment to the applicant; however, departments are required to notify the applicant in writing of any conviction(s) which preliminarily disqualify them from a position. The written notification must contain the following:

• Notice of the disqualifying conviction(s)
• A copy of the conviction history report
• An explanation of the applicant’s rights to respond to the preliminary decision with evidence challenging the accuracy of those conviction(s) for the basis of rescinding the offer, evidence of rehabilitation, and/or mitigating circumstances

Applicants must be provided five business days from delivery to respond before a department can make a final decision.

If within the five business days, the applicant notifies the employer in writing that he or she disputes the accuracy of the conviction history report, and he or she is taking specific steps to obtain evidence supporting this assertion, the applicant shall have five additional business days to respond to the notice.

If the notification is transmitted through a format that does not provide confirmation of receipt or delivery, the notice shall be deemed received using the following guidelines:

• California delivery address: five calendar days after mailing is deposited
• Delivery address outside of California: ten calendar days after mailing is deposited
• Delivery address outside of the United States: 20 calendar days after mailing is deposited

Final Decision to Rescind Employment Offer

All materials submitted by the applicant must be considered before a final decision is made. Final decisions to rescind an employment offer must be made in writing and must contain the following:

• The department’s final disqualification decision to rescind a conditional offer of employment. The department may, but is not required to, justify or explain the reasons for the disqualification to the applicant.
• Any existing procedure the department has for the applicant to challenge the decision or request reconsideration.
• Rights to file a complaint with the hiring department.

Authorities

• Government Code section 12952
• Labor Code section 1685
• Labor Code section 432.7
• Penal Code section 13101

Resources

Authorized By

Melissa Russell
Chief, Personnel Management Division

Contact Person

Personnel Management Division
Personnel Program Consultant , Personnel Management Division
Phone: 916-909-3709
Fax: 916-327-1886
Email: pmd@calhr.ca.gov

Superseded Policies

History

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